After the break-up of western Christendom following the Treaty of Westphalia of 1648, a number of historical changes took place in customary international law. One of the most important changes, if not the most important, was the emergence of the nation-state and the political philosophy to which it gave rise, that is to say, the theory of political sovereignty as the cornerstone of the rights and duties of the various states that came into existence. The political sovereignty of states resulted in the gradual replacement of the old international relations within Christendom, which were based upon a theocratic system of law, by a wider legal system that later embraced nations outside Christendom and engendered a universalization of international relations and, therefore, of international law.

At its 2008 session the United Nations International Law Commission (ILC) completed work on a set of nineteen draft articles on the law of transboundary aquifers and transmitted the draft to the General Assembly. The ILC recommended that the Assembly take note of the draft articles and at a later stage consider the elaboration of a convention based upon them.

As I started to think about how to respond to your kind invitation to participate in the symposium on method in international law, and what to write to the readers of the Journal, I soon noticed that it was impossible for me to think about my—or indeed anybody’s—“method” in the way suggested by the symposium format. This was only in part because I felt that your (and sometimes others’) classification of my work as representative of something called “critical legal studies” failed to make sense of large chunks of it whose labeling as “CLS” might seem an insult to those in the American legal academy who had organized themselves in the 1970s and early 1980s under that banner. You may, of course, have asked me to write about “CLS” in international law irrespectively of whether I was a true representative of its method (whatever that method might be). Perhaps I was only asked to explain how people generally identified as “critics” went about writing as they did. But I felt wholly unqualified to undertake such a task. Dozens of academic studies had been published on the structure, history and ideology of critical legal studies in the United States and elsewhere. Although that material is interesting, and often of high academic quality, little of it describes the work of people in our field sometimes associated with critical legal studies—but more commonly classed under the label of “new approaches to international law.“1 In fact, new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to articulate its reality.

The place of law in the settlement of disputes by the Security Council is a topic which has already occasioned debate. Many lawyers contend that law plays a minimal rôle in the work of the Council. That organ is, they point out, essentially a political body. It operates in a different way from a judicial body such as the International Court of Justice, and frequently ignores the law of nations. Oscar Schachter, writing in this Journal in 1964, has offered another view, pointing to subtle ways in which the influence of law can still make itself felt in the work of the Security Council, by providing a common language, by applying principles to specific cases, and by determining new points of community interest. The purpose of this article is to examine, in the light of recent years, some of the limitations within which this legal endeavor takes place, and to see whether law has any real function in the settlement of disputes.

President George W. Bush historically challenged the United Nations Security Council when he uttered some memorable words in the course of his September 12, 2002, speech to the General Assembly: “Will the UN serve the purpose of its founding, or will it be irrelevant?” In the aftermath of the Iraq war there are at least two answers to this question. The answer of the U.S. government would be to suggest that the United Nations turned out to be irrelevant due to its failure to endorse recourse to war against the Iraq of Saddam Hussein. The answer of those who opposed the war is that the UN Security Council served the purpose of its founding by its refusal to endorse recourse to a war that could not be persuasively reconciled with the UN Charter and international law. This difference of assessment is not just factual, whether Iraq was a threat and whether the inspection process was succeeding at a reasonable pace; it was also conceptual, even jurisprudential. The resolution of this latter debate is likely to shape the future role of the United Nations, as well as influence the attitude of the most powerful sovereign state as to the relationship between international law generally and the use of force as an instrument of foreign policy.

The concepts of necessity, imminence, and proportionality play a central part in Daniel Bethlehem’s sixteen proposed principles regulating a state’s use of force against an imminent or actual attack by nonstate actors. While all three are requirements that must be considered in the law of self-defense, their exact content remains somewhat unclear. In this comment, we examine how each one is conceived in Bethlehem’s principles and review the questions that remain unanswered.

The contributors to this symposium, both principal authors and commentators, ably demonstrate that there are indeed “overarching constructs” linking the subdisciplines of international law. All of the writers here assume that linkage issues arise for the World Trade Organization, as they have with respect to a number of other intergovernmental organizations, precisely because centralized, quasi-autonomous institutions maybe relatively effective vehicles for the promotion of interstate cooperation between rational, egoistic state actors. All of them assume, as scholars of international relations and economists have long recognized, that many international regimes are linkage machines by their very nature. It is important to recall why this is so in order to consider when or how an organization’s attempts at linkage may fail.

A hundred years ago, the American Journal of International Law (AJIL) was founded by a group of publicists who believed that international law could abolish (or at least substantially diminish) the role of power in world affairs. So deep was this belief that it often served as a background operating assumption in international legal scholarship and did not even require discussion. But since 1940, dozens of articles in the Journal have focused on the relationship between law and power. Indeed, many AJIL articles have been written by scholars and practitioners whose life work has focused on power and international law—how power constrains international law (or dooms it to irrelevance), how the powerful can harness international law to their ends, and how international law may autonomously reconfigure power in its own right.

Judgments of the International Court of Justice (ICJ) and awards of ad hoc arbitration tribunals carry special weight in international maritime boundary law. On its face, the international maritime boundary law codified in the 1982 Convention on the Law of the Sea is indeterminate. For the continental shelf and the exclusive economic zone, the legal obligation of coastal states is to delimit the boundary “by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” The article on the delimitation of maritime boundaries in the territorial sea is no more determinative despite the fact that it makes direct references to the equidistant line, special circumstances and historic title. In spite of this indeterminacy, if not because of it, coastal states have found that third-party dispute settlement procedures can effectively resolve maritime boundary delimitation disputes. As a consequence, there are more judgments and awards on maritime boundary disputes than on any other subject of international law, and this trend is continuing.

For more than two decades, historians of the United States have energetically debated the relative importance of liberalism and republicanism in the 1770s and 1780s. Was the late eighteenth century a time of progress, and events culminating in the ratification of the Constitution a triumph for individual rights and liberal society, as convention held? Or was it a time of decay, and the events of the founding a renewal of citizen virtue in defense of the common good? Political theorists and constitutional scholars joined the debate, extending it beyond the founding and noting its relevance to our own time. Everyone agreed that liberalism eventually prevailed, more or less completely, for better or for worse. Just when it did so, and why, were questions always asked but never satisfactorily answered as the debate ran its course.

The principle that treaty obligations must be fulfilled in good faith is one aspect of the fundamental rule that requires all subjects of international law to exercise in good faith their rights and duties under that law.

In the sociopolitical sphere, this fundamental principle may be seen as manifesting the need perceived by states for an international legal system that can ensure international order and prevent arbitrary behavior and chaos. In the legal sphere, the principle is confirmation of the character of international law as law. Subjects of international law are legally bound under the principle to implement what the law prescribes.

The sixth session of the Third UN Conference on the Law of the Sea was held in New York from May 23 to July 15, 1977.

The Conference confirmed two procedural decisions taken at the close of the fifth sesison—to devote the first two or three weeks of the sixth session to Committee I (deep seabed) problems and to entrust the President and Committee Chairmen with the preparation of an informal composite text of the treaty as a whole later in the session. In the interim between the fifth and sixth sessions, Minister Jens Evensen of Norway, Vice-President of the Conference, who at an earlier stage of the Conference had held lengthy informal meetings on economic zone matters with marked success, arranged for an intersessional meeting in Geneva early in 1977 on the deep seabeds sytem of exploitation, to which all conference participants were invited. Minister Evensen continued these efforts at the Conference itself, reporting to the Chairman of the First Committee.

Commenting on the papers in this symposium is paradoxically a difficult task. The authors are remarkably distinguished and one can only learn from what they write. Indeed, I have learned much from them (especially from Dean David Leebron’s splendid clarification of several aspects of linkage, a paper that shows that he should have been an Oxford philosopher if only he had not been such a successful legal scholar). Yet it is easy for an invited commentator to be overwhelmed by despair because the authors write for the most part as if in a research vacuum. There is little attempt at relating what they write to the enormous literature on the problem of linkage.